Understandably, many couples like to keep things straightforward when it comes to making a Will. Typically, they will want to just leave everything to their spouse or partner when they pass away.
This is so they can make sure that their partner can continue to live in their home and access their finances. They probably consider everything they own to be jointly owned with their partner, even if some of the assets only belong to one of them. Sideways Disinheriting occurs when someone who has children from a previous relationship remarries after the death of their partner or spouse, inadvertently disinheriting their children.
We will use Mr and Mrs Smith to illustrate how this could happen and how a Life Interest Trust can help. Mr and Mrs Smith have made Mirror Wills, leaving everything to each other, with it then passing to their daughter on the second person’s death.
In this scenario, after Mrs Smith dies, Mr Smith remarries and he and his new wife, Ms Jones, live in the property that Mr Smith owns outright. He is aware of the fact that remarriage revokes a Will, so he makes a new Mirror Will with his new wife, in which they again leave everything to each other and then evenly between his daughter and his wife’s two sons (from her previous marriage).
When Mr Smith dies, his entire Estate passes to his new wife, Ms Jones, in line with the terms of his Will. She then makes a new Will which disinherits Mr Smiths’ daughter, leaving everything instead to her two sons. Mr Smiths’ daughter inherits nothing from her parents’ Estate.
An increase in blended families has highlighted this issue, with a growing number of children being born to parents not legally married and the high proportion of marriages ending in divorce. If you are in this situation, you’ll probably want to leave something to your children when you die but this can be complicated if you also want to provide for your new spouse if you die before them.
You can protect your children simply by making a new Will once you remarry. This simple action can help you to avoid the situation where you disinherit your children but in reality, the majority of people will forget to write this new Will or will trust the new partner to do the right thing but unfortunately the law does not recognise love or trust. After someone has died monies can change an individual’s reasoning.
There are legal solutions you can put in place to protect your new spouse or civil partner, using your Will to leave your assets into a Trust can be a great way to protect your children and also help to protect your new partner.
One option is to include a Life Interest Trust in your Will which means that when you die, all your assets go into a Trust instead of being directly given to your spouse or partner. This Life Interest Trust, managed by Trustees that you appoint, will ring-fence your assets and name your ‘Life Tenant’. The person you name as your Life Tenant will be allowed to live in your property and gain any income generated by your ring-fenced assets for the rest of their lifetime or, if you prefer, until they remarry.
Once your spouse dies or remarries, all your assets held in the Trust will be passed to your children. A Life Interest Trust in your Will can help to protect your children from accidental or enforced sideways disinheritance. If Mrs Smith had included a Life Interest Trust in her Will, she could have ring-fenced her share of the property in a Trust and given her husband a life interest. This would mean that he could continue living in the property for the rest of his life, but on his death, Mrs Smiths’ share would still pass down to her daughter.
So, the key question to ask yourself is, how important is it that your blood line inherits from your estate and do your Wills reflect this? If you’ve decided that for you it is extremely important that your children receive assets from your estate, and the thought of another family benefiting if your partner were to remarry upsets you, then please get in touch to review or update your Wills.